J-S45027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL MCKINNON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1722 EDA 2022

Appeal from the Judgment of Sentence Entered February 15, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No.: CP-51-CR-0001240-2021

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2023

Appellant Michael McKinnon appeals from the February 15, 2022 

judgment of sentence entered in the Court of Common Pleas of Philadelphia 

County (“trial court”), following his bench conviction for strangulation, simple 

assault, and recklessly endangering another person (“REAP”).1 Upon review, 

we affirm.

The facts and procedural history of this case are undisputed. As detailed 

by the trial court:

On December 11, 2020, [Appellant] and his intimate partner of 

three years, [G.B.], began to argue after they were involved in a 

car accident. [G.B.] was the driver and [Appellant] was a 

passenger in the car on the way to pick up their two friends when 

they were involved in the accident. After the accident, [G.B.], 

[Appellant], and the two friends drove to [G.B.’s] home at [] South 

Bembrey Street in Philadelphia. [G.B.] attempted to arrange

picking up a rental car. While [G.B.] made these arrangements, 

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1 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a), and 2705, respectively. 
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[Appellant] went around the block to a corner store that sells 

liquor shots. He came back to the house from the corner store

with a “grisly” look on his face, indicating to [G.B.] that he had 

recently drank liquor.

[Appellant] called [G.B.] a bitch and said he was going to tell the 

insurance company the accident was her fault. [G.B.] called 

[Appellant] a drunk and then drove, with [Appellant] in the car, 

her two friends back to their house. During the car ride back to 

her house on Bembrey Street, [G.B.] called her sister and spoke 

with her through a Bluetooth device, telling her sister that 

[Appellant] had been drinking and that she was going to go to her 

bedroom when she arrived at home because she “knew where this 

[was] heading.” Upon their return to [G.B.’s] house, [Appellant]

went inside ahead of [G.B.]. Shortly after, [G.B.] followed 

[Appellant] inside. She locked the door, turned around, and 

[Appellant] punched her once in the chest. [G.B.] was still on the 

phone with her sister when this happened.

Next, [Appellant] grabbed [G.B.’s] shirt and threw her to the floor. 

[G.B.’s] wallet fell from her back pocket when [Appellant] threw 

her down. [G.B.] testified that [Appellant] took her phone and 

threw it across her living room, with the phone landing in between 

her sofa and her table. [G.B.] and [Appellant] grabbed for the 

wallet at the same time. [G.B.] testified that while attempting to 

get the wallet from [G.B.’s] hands, [Appellant] dragged [G.B.] by 

her arms from the front door to the kitchen area.

[G.B.] testified that [Appellant] sat on her back and pressed his 

forearm around her throat and neck. [G.B.] started to see spots 

and was afraid [Appellant] was going to kill her. [G.B.], despite 

being choked, was able to tell [Appellant] three times that she 

could not breathe. During the struggle, [Appellant] threatened to 

bite [G.B.] causing her to drop the wallet. Eventually, [Appellant] 

stopped choking [G.B.]. Knowing that [G.B.] has asthma, 

[Appellant] retrieved her inhaler, and tossed it on the ground next 

to her. [Appellant] obtained the wallet and took $200 out that he 

had given her earlier that day. [Appellant] left the house with 

[G.B.] still on the ground.

[G.B.] testified that her sister called the police who arrived after 

[Appellant] left. [G.B.] testified that paramedics arrived after the 

police and gave her a “breathing treatment.” After, she went to 

the police district and gave a statement to detectives about the 

incident. She did not go to the hospital or photograph her injuries, 
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but she testified that she had some bruising on her chest area. 

[G.B.] explained that she did not want to be photographed or seek 

medical treatment because it was upsetting and embarrassing.

The next day, [Appellant] came back to [G.B.’s] house to bring 

back the $200 and a pair of shoes that she had gifted him. Two 

days after that, [Appellant] called [G.B.] complaining that he was 

struggling because he did not have access to his medication and 

that he was hungry. [G.B.] testified that, despite what [Appellant] 

had done to her, she did not want to see him suffer so she dropped 

off a bowl of spaghetti for him at his house.

[G.B.’s] sister, [J.W.], testified that she was on the phone with 

[G.B.] during this altercation. She testified that the phone call 

went from a calm conversation to stressful after [Appellant] began 

to curse at [G.B.] and call her a bitch. Eventually, the call ended 

and [J.W.] dialed 911 because of what she was hearing over the 

phone.

Trial Court Opinion, 8/22/22, at 1-3 (record citations omitted). Appellant was 

charged with and convicted of the above-referenced crimes.2 On February 15, 

2022, the trial court sentenced Appellant to three and one-half to seven years’ 

imprisonment for strangulation, followed by consecutive two-year 

probationary terms for simple assault and REAP. On February 24, 2022, 

Appellant post-sentence motions, which were denied by operation of law June 

27, 2022. See Pa.R.Crim.P. 720(B)(3)(c). Appellant timely appealed. The 

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal. Appellant complied. In response, the trial court 

issued a Pa.R.A.P. 1925(a) opinion.

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2 The trial court found Appellant not guilty of theft by unlawful taking –

movable property (18 Pa.C.S.A. § 3921(a)) and receiving stolen property (18 

Pa.C.S.A. § 3925(a)).
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On appeal, Appellant argues only that his conviction for strangulation 

was not supported by sufficient evidence. Appellant’s Brief at 3. In particular, 

he argues that “there was insufficient evidence that he impeded [G.B.’s] 

breathing either knowingly or intentionally, the requisite mens rea under 18 

Pa.C.S.A. § 2718.” Id. 

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal 

denied, 95 A.3d 275 (Pa. 2014).

Section 2718(a)(1) of the Pennsylvania Crimes Code states, “[a] person 

commits the offense of strangulation if the person knowingly or intentionally 

impedes the breathing or circulation of the blood of another person by [] 
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applying pressure to the throat or neck.” 18 Pa.C.S.A. § 2718(a)(1). The 

“[i]nfliction of a physical injury to a victim [is] not [] an element of the 

offense.” Id. at § 2718(b) (stating, “[t]he lack of physical injury to a victim 

shall not be a defense in a prosecution under this section”).

The Crimes Code defines the terms “knowingly,” and “intentionally” as 

follows:

§ 302. General requirements of culpability

 . . .

(b) Kinds of culpability defined.--

(1) A person acts intentionally with respect to a material element 

of an offense when:

(i) if the element involves the nature of his conduct or 

a result thereof, it is his conscious object to engage in 

conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant 

circumstances, he is aware of the existence of such 

circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element of 

an offense when:

(i) if the element involves the nature of his conduct or 

the attendant circumstances, he is aware that his 

conduct is of that nature or that such circumstances 

exist; and

(ii) if the element involves a result of his conduct, he 

is aware that it is practically certain that his conduct 

will cause such a result.

18 Pa.C.S.A. § 302(b)(1-2). “[I]ntent can be proven by direct or 

circumstantial evidence; it may be inferred from acts or conduct or from the 
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attendant circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641 

(Pa. Super. 2017) (citation and original quotation marks omitted), appeal 

denied, 183 A.3d 970 (Pa. 2018).

Based on our review of the record, as detailed above, and given the 

totality of the circumstances, we agree with the trial court’s conclusion that, 

viewed in a light most favorable to the Commonwealth, the evidence 

establishes that the Commonwealth proved beyond a reasonable doubt that 

Appellant was guilty of strangulation. As the trial court reasoned:

[T]here was sufficient evidence to convict [Appellant] of 

strangulation beyond a reasonable doubt because the trial court 

determined that [G.B.’s] testimony was credible. This credible 

testimony described an intentional choke.[3] Appellant was sitting 

on [G.B.’s] back, pressuring his forearm against her throat and 

neck area. The Commonwealth and [G.B.] both explicitly used 

the word “choke” or “choking” numerous times during [G.B.’s] 

direct examination. [G.B.] began to see spots during the choke 

and felt as if she was going to die. [G.B.] told Appellant that she 

could not breathe three times. [She] recalled that she was unable 

to protest loudly because she “didn’t have much breath.” [G.B.], 

during her testimony, questioned why her partner would choke 

her in this manner when Appellant knew [G.B.] had asthma. 

Appellant impeded [G.B.’s] breathing to the point that she needed 

to use her inhaler and receive breathing treatment from 

paramedics. Appellant’s choke was not merely incidental to the 

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3 To the extent Appellant invites us to accept his preferred version of the 

events (that because he eventually ceased choking her after she told him 

thrice she could not breathe, he merely acted recklessly), we decline the 

invitation. It is settled that we may not substitute our judgment for that of 

the factfinder—whether a jury or the trial court—because it is the province of 

the factfinder to assess the credibility of the witnesses and evidence. See 

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004); 

Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate 

court is barred from substituting its judgment for that of the finder of fact.”); 

see also Antidormi, supra.
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struggle for the wallet. Appellant’s conduct was not negligent or 

reckless, but rather an intentional impediment of [G.B.’s]

breathing. There is sufficient and credible evidence 

demonstrating that Appellant’s conduct was intentional, fulfilling 

the requisite mens rea in the strangulation statute.

Trial Court Opinion, 8/22/22, at 5-6 (record citations omitted). The record is 

clear that Appellant sat on G.B.’s back and pressed his forearm around her 

throat and neck. G.B., whom Appellant knows to be asthmatic, started to see 

spots and was afraid that Appellant was going to kill her. Despite being 

choked, and with what breath she could muster, G.B. had to tell Appellant

three times that she could not breathe. Accordingly, we agree with the trial 

court’s conclusion that, viewed in a light most favorable to the 

Commonwealth, the evidence establishes that the Commonwealth proved 

beyond a reasonable doubt that Appellant committed strangulation. Appellant 

obtains no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2023